“Clerical Personnel Are Not Covered by the Fair Labor Standards Act”

Those were the words opined today by Judge Richard Posner of the 7th Circuit Court of Appeals in this ruling concerning exemptions for religious employers. Posner distinguished the plaintiff’s ecclesiastical administration of a church from the ordinary commercial activities of a religious organization. Under Posner’s view, employees working in the latter arena are entitled to Fair Labor Standards Act (FLSA) protections whereas the former are not. I don’t see the rationale for a religious exception here; this is not analogous to a religious employer discriminating against non-believers in hiring/firing. Shouldn’t clerical personnel be entitled to the same wage benefits as all other commercial employees?

4 Responses to “Clerical Personnel Are Not Covered by the Fair Labor Standards Act”

I have no problem at all with this one. Judge Posner (and the rest of the panel he writes for — Judges Cudahy and Evans are hardly potted plants) is right — it would be intolerable if a church could not impose, as a condition of allowing someone to serve as an ordained religious (minister, priest, rabbi, nun, monk, etc.), that the religious work for less than the minimum wage, or no wage at all. As the court points out, it would not do for the state to tell the church who its pastors shall be, or to regulate the vow of poverty out of existence. Obviously a church should not be free to impose similar requirements on secretaries or janitors, any more than McDonald’s can on burger-flippers, but avoiding state entanglement with religion is of sufficient importance that I am quite ready to live with the possibility that some marginal cases, relating to whether or not an employee’s function is religious or administrative, may be wrongly decided in favor of the church.

LB — You missed Posner’s point. He’s not rebuking the plaintiffs for failing to make a winning retaliation claim — he’s pointing out that if they had claimed retaliation, the church’s most likely defense — that suing the church was inconsistent with their obligations as ministers and constituted an independent grounds for terminating them — would have been unanswerable, as allowing the plaintiffs to challenge it would have required the court to inquire into the contours of church doctrine, which it will not (and should not) do.

If they charged retaliation, and the Salvation Army replied that
they had been fired because their filing a suit seeking
to enforce wage and overtime claims was inconsistent
with their religious obligations as ministers and was thus
an independent and adequate ground for firing them,
the court would have to explore the religious doctrines
of the Salvation Army that define the role of its ministers.
Blocking such inquiries—such entanglements of the
secular courts in religious affairs—is one of the grounds
on which the ministers exception was devised as a rule
of interpretation of employment laws that do not make
explicit reference to religious organizations.